Filed 2/26/21 P. v. Franklin CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C090900
Plaintiff and Respondent, (Super. Ct. No. 18FE014798)
v.
GERALD TODD FRANKLIN,
Defendant and Appellant.
A jury found defendant Gerald Todd Franklin guilty of unlawful possession of a
firearm, assault with a firearm, and mayhem after defendant pointed a shotgun at a man
and shot off the back of his hand when the man pushed the gun away. Defendant
appeals, contending the trial court abused its discretion when it denied his motion for a
continuance to obtain new counsel. We conclude the trial court did not abuse its
discretion and affirm the judgment.
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FACTS AND PROCEDURAL HISTORY
No discussion of the facts underlying the offense is necessary to the issues raised
by defendant on appeal. Instead, we summarize the relevant procedural history.
In October 2018, the prosecution charged defendant with assault with a firearm
(Pen. Code, § 245, subd. (a)(2); statutory section references that follow are to the Penal
Code, unless otherwise set forth) and unlawful possession of a firearm as a felon
(§ 29805). The information further alleged defendant personally used a firearm in the
commission of the offense (§ 12022.5, subds. (a), (d)) and personally inflicted great
bodily injury (§ 12022.7, subd. (a)). At the preliminary hearing, the trial court found that
the People had presented sufficient evidence to also bring a charge of mayhem (§ 203),
with the allegations that defendant personally used a firearm (§ 12022.53, subd. (b)) and
intentionally discharged the firearm causing great bodily injury (§ 12022.53, subds. (c),
(d)), in the event they decided to bring the additional charge.
At a hearing more than three months later, the prosecutor said that consistent with
his recent discussions with defense counsel, he intended to add the mayhem charge and
related allegations. That same month, defendant made his first motion for substitute
counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), stating he was
dissatisfied with her lack of attentiveness to his case. Finding no sufficient basis for the
motion, the court denied it.
Five months thereafter, in July 2019, unhappy with defense counsel’s purported
lack of communication and bothered by her perceived relationship with the district
attorney, defendant made a second Marsden motion. During the hearing, defendant said
his counsel had apprised him that he would be charged with mayhem, which “carries a
25-to-life sentence.” He emphasized that his “life [was] on the line.” Defense counsel
responded she had “talked ad nauseam about mayhem” with defendant, and confirmed
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she had promptly conveyed every change in the prosecution’s position to defendant. The
trial court found defendant’s complaints were unfounded and denied the motion.
Defense counsel then stated that she might ask that the trial date be continued,
over defendant’s objection, if she had not obtained medical records prior to trial. The
hearing concluded after the prosecutor confirmed he would file an amended information
adding the mayhem charge and allegations, as the parties had been unable to reach a plea
deal. The prosecution amended the information nearly two weeks later, increasing
defendant’s exposure from a maximum of 18 years to a maximum of life in prison.
Six weeks after the amendments to the complaint, on September 24, 2019, the case
proceeded to trial. During voir dire, defendant told the court that he wished to represent
himself. He conceded that he was unprepared to proceed with trial if the court granted
his motion to represent himself and agreed he was making the motion so that he could get
a continuance to consider other options. He requested a 90-day continuance to prepare
his case for trial and “seek[] co-counsel” to assist him. The court construed his request as
a motion for self-representation under Faretta v. California (1975) 422 U.S. 806
[42 L.Ed.2d 562] (Faretta) and denied it as untimely.
Later that day, concerned it had issued its ruling without sufficient inquiry, the
court revisited the Faretta motion. The court asked defendant why he had waited until
the day of trial to make his motion, to which defendant said he was “just not satisfied
with the direction of [his] defense.” Defendant explained that he sought a continuance to
represent himself while finding co-counsel, which he said his newly-employed wife could
now afford. The court attempted to clarify, asking, “you really are seeking to represent
yourself in order to get a continuance; is that correct?” Defendant responded, “so to
speak.”
After further inquiry, during which defendant expressed his continued frustration
with his attorney, the court concluded that defendant’s dissatisfaction with his counsel’s
performance was at the heart of his complaint, which necessitated further exploration.
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Defendant agreed, so the court construed defendant’s request as a Marsden motion and
held a hearing. At the hearing, defendant stated, “I am fighting a life case and [my
counsel] and I have countless disagreements in the direction of my defense.” He
complained that she had tried to persuade him to take a plea deal to avoid the mayhem
charge, and that she expected to lose the case. After further discussion, the court asked if
defendant’s “first choice” was to replace his counsel and whether his wife was trying to
hire an attorney, to which he responded “yes” without further elaboration. The court then
denied the Marsden motion, finding defendant’s counsel was providing him with
adequate representation and pursuing the very defense he requested.
The court then denied defendant’s Faretta motion as “equivocal” and “really not a
Faretta motion,” but rather “really kind of a Marsden motion.” The court explained that
it believed defendant “really would like to be represented by counsel,” but that the
request was an untimely and tactical attempt to delay trial without good cause,
particularly in view of defendant’s previous objections to continuances.
The case proceeded to trial with defendant’s appointed counsel. The jury found
defendant guilty on all counts and allegations but did not find that he intentionally
discharged a firearm. The court deemed assault with a firearm the principal term and
sentenced defendant to the midterm of three years, plus a consecutive three-year sentence
for the great bodily injury enhancement and a consecutive 10-year sentence on the
firearm enhancement, for an aggregate sentence of 16 years. The court imposed and
stayed an aggregate 14-year sentence for mayhem, comprised of the midterm of four
years plus a consecutive 10-year firearm enhancement. The court also imposed a
concurrent two-year sentence for unlawful possession of a firearm as a felon.
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DISCUSSION
I
Defendant’s Request for Continuance
Defendant argues the trial court abused its discretion in denying his request for a
continuance at the start of trial to allow him to obtain new counsel. He contends he was
entitled to a continuance to retain counsel because the People filed an amended
information less than 60 days before trial, which increased his exposure from 18 years to
life. Further, he contends that all witnesses were local, the jury had not yet been selected,
and the trial court did not find that a continuance would have been a significant
inconvenience. Finally, he asserts the trial court failed to reference the applicable law
when articulating its decision.
While the People counter that defendant’s request is most accurately viewed as a
continuance to represent himself rather than retain counsel, which the trial court properly
denied, defendant does not contend that the trial court erred in denying either his
Marsden motion or Faretta motion. Thus, although it appears that defendant’s request
was primarily in the nature of Marsden and Faretta motions, we address defendant’s true
contention on appeal, that is, whether the trial court committed reversible error when it
failed to grant a continuance for defendant to hire an attorney. We find no abuse of
discretion.
Under both the Sixth Amendment to the United States Constitution and article I,
section 15 of the California Constitution, a criminal defendant has a right to the
assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 684-685
[80 L.Ed.2d 674]; People v. Pope (1979) 23 Cal.3d 412, 422.) “[D]ue process of law, as
it is expressed through the right-to-counsel provisions of the state and federal
Constitutions, comprehends a right to appear and defend with retained counsel of one’s
own choice.” (People v. Byoune (1966) 65 Cal.2d 345, 346 (Byoune).) Limitations on
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this right are “carefully circumscribed. Thus, the right ‘can constitutionally be forced to
yield only when it will result in significant prejudice to the defendant himself or in a
disruption of the orderly processes of justice unreasonable under the circumstances of the
particular case.’ [Citations.]” (People v. Courts (1985) 37 Cal.3d 784, 790 (Courts).)
A necessary corollary of the right to retain counsel is that “ ‘a defendant must be
given a reasonable opportunity to employ and consult with counsel; otherwise, the right
to be heard by counsel would be of little worth. [Citations.]’ [Citations.] In addition,
counsel, ‘once retained, [must be] given a reasonable time in which to prepare the
defense.’ [Citation.]” (Courts, supra, 37 Cal.3d at p. 790.)
A trial court’s denial of a request for a continuance to seek private counsel is
reviewed under an abuse of discretion standard. (People v. Pigage (2003)
112 Cal.App.4th 1359, 1367.) “A continuance may be denied if the accused is
‘unjustifiably dilatory’ in obtaining counsel, or ‘if he arbitrarily chooses to substitute
counsel at the time of trial.’ [Citation.]” (Courts, supra, 37 Cal.3d at pp. 790-791.) “In
deciding whether the denial of a continuance was so arbitrary as to violate due process,
the reviewing court looks to the circumstances of each case, ‘ “particularly in the reasons
presented to the trial judge at the time the request [was] denied.” ’ [Citation.]” (Id. at
p. 791.) The trial court is generally “within its discretion to deny a last-minute motion for
continuance to secure new counsel.” (People v. Keshishian (2008) 162 Cal.App.4th 425,
429.) “ ‘[O]nly an unreasoning and arbitrary “insistence upon expeditiousness in the face
of a justifiable request for delay” violates the right to the assistance of counsel.’ ”
(People v. Alexander (2010) 49 Cal.4th 846, 934-935.) Additionally, where the prospect
of retaining counsel is “still quite speculative at the time the motion for continuance [i]s
made” the court has even greater latitude to deny the requested continuance. (Courts, at
p. 791, fn. 3.)
The record in this case supports the trial court’s determination that defendant’s
request was unjustifiably dilatory. Contrary to defendant’s contention on appeal,
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defendant’s stated reason for the continuance was not the amended information. Rather,
defendant moved for a continuance based on largely rehashed complaints about his
counsel’s performance and perceived motivations, consistent with his two prior Marsden
motions. When asked, defendant was unable to explain to the trial court why he waited
until voir dire to move for a continuance, and at no time did defendant cite the amended
information, or his increased exposure, as grounds for the request. Indeed, several
months prior to trial and aware of the impending mayhem charges, defendant had
opposed his own counsel’s request for a trial continuance. Thus, the court was within its
discretion to deny the request as inexcusably delayed.
Further, the defendant’s prospect of retaining counsel at the time of the motion for
continuance was wholly speculative. While he asserted that he had the financial means to
acquire counsel now that his wife worked, he did not explain when those means arose or
describe any concrete steps he had taken to retain counsel. Thus, it was mere speculation
that defendant would be ready to begin trial in 90 days. Under these circumstances, the
trial court was not required to accommodate what might turn out to be an open-ended
request for continuance to allow defendant to arrange for private representation. (See,
e.g., People v. Murphy (1973) 35 Cal.App.3d 905, 915-916 [no abuse of discretion
denying continuance before trial where there was no assurance the defendant’s desired
attorney would accept his case]; People v. Johnson (1970) 5 Cal.App.3d 851, 858-859
[no abuse of discretion denying continuance before trial where it was unclear that
defendant had ever contacted his desired counsel].)
Defendant relies on Byoune, supra, 65 Cal.2d 345 and Chandler v. Fretag (1954)
348 U.S. 3 [99 L.Ed. 4], arguing the trial court erred by failing to acknowledge either
case as the relevant authority for defendant’s motion. However, those cases are
distinguishable and thus not dispositive here. In both Chandler and Byoune, the courts
concluded that trial courts violated defendants’ right to counsel when they denied
motions to continue trial to retain counsel, where the defendants learned of their
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increased charges immediately before trial and promptly requested a continuance to
retain counsel in light of their increased exposure. (Byoune, at pp. 346-348; Chandler, at
pp. 4-8.) Here, unlike in Chandler and Byoune, defendant was apprised of the likelihood
of a mayhem charge at the preliminary hearing, nearly a year before trial. Approximately
three months before trial, defendant explained his awareness of the looming mayhem
charge to the court, noting it would convert his case to a life case. The information itself
was amended a month and a half before trial. As a result, defendant was not surprised
with new charges on the eve of trial. And, as discussed above, defendant did not seek
new counsel because of his increased exposure in the amended information.
II
Sentencing Error
Though not raised by the parties, we note that the trial court erroneously deemed
count 1, assault with a firearm, the principle term. In cases where double punishment is
prohibited, the defendant “shall be punished under the provision that provides for the
longest potential term of imprisonment.” (§ 654, subd. (a).) Enhancements are counted
when comparing potential terms of imprisonment. (See People v. Kramer (2002)
29 Cal.4th 720, 723-725.) Here, the longest potential term for mayhem (§ 204, eight
years) plus the firearm enhancement (§ 12022.53, subd. (b), 10 years) is 18 years, while
the longest potential term for assault with a firearm (§ 245, subd. (a)(2), four years), plus
the firearm enhancement (§ 12022.5, subd (a), 10 years) and great bodily injury
enhancement (§ 12022.7, subd. (a), three years) is 17 years. Thus, the court should have
stayed the sentence for assault with a firearm and deemed mayhem the principle term.
We will remand the case for resentencing. On remand, the trial court has
discretion to increase or decrease the sentence. (See People v. Serrato (1973) 9 Cal.3d
753, 764 [no prohibition on imposition of more severe sentence after reversal of
unauthorized sentence], disapproved on other grounds in People v. Fosselman (1983)
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33 Cal.3d 572, 583, fn. 1; People v. Hester (2000) 22 Cal.4th 290, 295 [sentence imposed
in violation of § 654 is unauthorized].)
DISPOSITION
The stayed 14-year sentence on the mayhem conviction and the 16-year
concurrent sentence on the assault with a firearm conviction are reversed, and the matter
is remanded for resentencing. The judgment is otherwise affirmed.
HULL, Acting P. J.
We concur:
MAURO, J.
MURRAY, J.
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